Seems pretty extreme to me -- I can understand why the jury deliberations were so heated:

When Martin Heidgen drove into oncoming traffic after a night of heavy drinking, drivers flashed their headlights and honked their horns to warn him, prosecutors said.

When the 25-year-old continued, hitting a wedding limousine and killing a chauffeur and a 7-year-old flower girl, he showed a ''depraved indifference to human life'' that qualified his actions as murder, jurors ruled Tuesday.

Jennifer Flynn, who testified about holding daughter Katie's decapitated head immediately after the wreck, collapsed sobbing into her weeping husband's arms when the verdict was read.

''It was the right verdict,'' she said later. ''I'm happy for that.''

Limo driver Stanley Rabinowitz, 59, was the second victim.

Jurors, who deliberated for five days, saw a horrifying video from the limo's surveillance camera that showed Heidgen's pickup truck barreling toward the car moments before the head-on crash. It ended with the metal-on-metal crunch of the two vehicles colliding.

The crash occurred on a Long Island highway in July 2005 as the family was returning home from a wedding.

Prosecutors will ask for the maximum of 25 years to life at the Nov. 20 sentencing for Heidgen, who stood stoically beside his two attorneys through the verdict. Jurors could have convicted him on the lesser charge of second-degree manslaughter, which carries up to 15 years in prison.

Bob,
Please, forgive any stridency you find in my response but I find this just another short-sighted way to treat the symptom and not the cause.

IMO, every vehicle licensed to use the highways of this country should have an alcohol detection device attached to the ignition that would require a person to blow into it before the ignition would activate.
Obviously, this is not a cure all (someone who hasn't been drinking could blow instead) and does nothing to stop drug induced driving. But the DUI problem is so large and so devisive that I think any action to stop the driving in the first place is more rational than murder charges.
And the costs involved in policing and punishing DUI far outweigh the costs of such devices.

Florida Jim wrote:Bob,Please, forgive any stridency you find in my response but I find this just another short-sighted way to treat the symptom and not the cause.

IMO, every vehicle licensed to use the highways of this country should have an alcohol detection device attached to the ignition that would require a person to blow into it before the ignition would activate.Obviously, this is not a cure all (someone who hasn't been drinking could blow instead) and does nothing to stop drug induced driving. But the DUI problem is so large and so devisive that I think any action to stop the driving in the first place is more rational than murder charges.And the costs involved in policing and punishing DUI far outweigh the costs of such devices.

Bob and Jim,
Unlike you two IANAL. However, it seems to me that the murder conviction is not entirely out of line (what degree of murder was it? 3rd? It certainly doesn't rise to 1st degree by any sane definition) although voluntary manslaughter seems more appropriate. As I live in a state that only recently passed an open container law, the principal weapon against DUI in my opinion is very forceful education. In my era, driver's training classes in high school were horror shows of the consequences of various stupid actions behind the wheel. While that may or may not be effective, I think that everyone who gets a drivers' license needs to have the idea that "if you drink, don't drive" pounded into their skulls one way or another.
Regarding Bob's issue: it seems to me that a charge of murder can be supported if it can be shown that the person displayed willful disregard for human life in choosing to drive after drinking. Specifically, if it can be shown that he was warned not to drive or forcefully resisted having his keys taken from him, I think that a charge of murder is not out of the question. As ever with legal issues, the Devil is in the details.

DUI is a horrible problem as Jim said. Tackling it one conviction at a time will never do anything, no matter what the punishment. As supporting evidence to my claim I put forth that murder convictions are the frequent result of gun crimes. How successful has that been?

Oh, and by the way, while I can see this as wine related, it is in no way the kind of discussion that draws me here in the first place.

There behind the glass lies a real blade of grass. Be careful as you pass. Move along. Move along.

Regarding Bob's issue: it seems to me that a charge of murder can be supported if it can be shown that the person displayed willful disregard for human life in choosing to drive after drinking. Specifically, if it can be shown that he was warned not to drive or forcefully resisted having his keys taken from him, I think that a charge of murder is not out of the question. As ever with legal issues, the Devil is in the details.

Mark,
If you can, put aside the legal issue for a moment and look at this from any other perspective you find appropriate. I'd be curious to hear what you have to say.

Florida Jim wrote:If you can, put aside the legal issue for a moment and look at this from any other perspective you find appropriate. I'd be curious to hear what you have to say.

And, what does IANAL mean?Best, Jim

As I [thought I] said in my previous post, I think that the most effective way to combat DUI is with a pro-active education program to try and inculcate a general understanding of the terrible consequences of impaired drivers on the road, coupled with a forceful (non-criminal) response to a DUI involving treatment for alcoholism and/or revocation of driving privileges. To me, it's akin to the whole War on Drugs, a colossal failure by any measure. It's revealing that Nixon had the most effective solution when, prior to the election of '72, on the advice of his Surgeon General about what it would take to combat the problem of heroin addiction, he funded methadone clinics and diverted possession cases into rehab clinics. That resulted in the single greatest reduction in heroin overdose hospitalizations (the best measure of addiction) ever recorded. Alas, after reelection, Nixon's priorities changed and the funding dried up.

Mark Lipton wrote:As I [thought I] said in my previous post, I think that the most effective way to combat DUI is with a pro-active education program to try and inculcate a general understanding of the terrible consequences of impaired drivers on the road, coupled with a forceful (non-criminal) response to a DUI involving treatment for alcoholism and/or revocation of driving privileges.

Yes you did; I mistakenly focused in on the legal point.
And while I agree that education is important, when I look back on my driver's training and life at that time, I see a boy who thought himself immortal and who did not look beyond his actions to the consequences thereof, even with driver's ed. and other admonishments.
So, I think something a little more immediate might also be a good idea.
Best, Jim

Regarding the murder charge: I'd guess the fact that the driver was warned by drivers of other vehicles that he was in the wrong lane brings it to "depraved indifference." But that's just a guess.

Regarding penalties for DWI, I think a first conviction should result in permanent loss of license. If they think they can get off with a fine, people will drive drunk. If they realize that driving drunk will take away the right to drive, they might possibly think twice. But probably not. After all, they're drunk when they get in the car. That's an explanation, but not an excuse. Get a DWI citation, lose your license, forever, period.

Addressing a few points above:
Jim, I sometimes go to afternoon tastings where I spit completely. But a few ITB folks have told me that breathalyzer will show alcohol for 15-30 minutes, so if stopped one should ask for a drawn blood test or to be tested at station. I would doubt that an installed breathalyzer in a car would be able to differentiate. Nor would I think it appropriate that a diner couldn't have one glass of wine.

I believe I remember a recent study that drivers with BAC of .15 or above made up less than 10% of DWI arrests, yet were involved in about 2/3s of fatal accidents. And a huge percentage of those already had a previous offense, and in many cases revoked licenses.

This is in no way to say that anyone should drive when impaired. I think a BAC of .08 is a reasonable threshold. I think anyone who blew .08 should lose their license for one year- no driving to work exceptions, no exceptions at all. I think any repeat offenses, or any BAC over .15, should result in permanent revocation (and jail time). I also believe there should be random checks of those with revocations to see if they are driving, and jail time to those who are (even if no alcohol involved). Because it starts off "well, I need to drive to work" and then one day someone says "let's grab a quick one" and....

I'm lucky that I most of my social life is either in my village or in NYC, where I can take public transport to and from (it's a mile and a half walk for me when I get home, I've never gotten in my car at station after an offline in city).

cheers, Dale
PS: I agree more can be done with treatment, but haven't seen mandated treatment being really effective.

Bob,
Controversial issue and I find it impossible to make a strict yes or no answer. I think my answer would require information on what alcohol % was in his system and any prior convictions. If the driver was really drunk, which it appears he was, and if he had prior convictions I think the penalty is quite appropriate. Locally we had a person in the paper that injured someone in an accident while driving drunk and had something like 10-15 prior DUI convictions. If this type of person continues to drive while drunk I would certainly support a very long prison sentence.
Walt

Dale Williams wrote:Jim, I sometimes go to afternoon tastings where I spit completely. But a few ITB folks have told me that breathalyzer will show alcohol for 15-30 minutes, so if stopped one should ask for a drawn blood test or to be tested at station. I would doubt that an installed breathalyzer in a car would be able to differentiate. Nor would I think it appropriate that a diner couldn't have one glass of wine.

Dale,
While I understand your argument, I would suggest that the problem is worth the inconvenience.

Moreover, any breath-test equipment can be calibrated such that legal levels would still allow the ignition to operate.
And, although I'm sure that cases vary according to many factors, breathalyzer type machines measure alcohol contained in alveolar air, that is, so called "deep lung" air. Gentle blowing into a breathalyzer will not engage the equipment. Hence, one would be required, whether impaired or not, to blow with sufficient volume and force to give a sample of alveolar air to the machine in order to engage it at all.

This issue is very difficult for obvious reasons. I have a co-worker whose son was killed by a drunk driver about 12 years ago. The drunk driver in question was a well respected local business man who made a really stupid decision. The family of the victim was completely devastated by their loss and will never fully recover. After spending almost 4 months in the hospital the driver was convicted of some type of manslaughter and served one year of a two year prison sentence. He lost everything, wife, money and real estate business included. In his case I do not believe that prison time did any good for anyone. The family of the victim agrees. They continue to morn their loss. He moved to Florida where he lives alone and works for a catering service. An instant of bad judgment changed more than half a dozen lives forever.

I agree that the focus should be on the prevention side.

Sam

"What lies behind us and what lies before us are a small matter compared to what lies within us" -Emerson

Jim,
I realize you have to blow hard to make a breathalyzer work, but any alcohol in your mouth (such as if you have spit ) can be picked up on way through- lung air has to pass through mouth. Which is why I've been told that if one is ever stopped after spitting you should calmly and politely explain that you would like a more definitive drawn blood test, or ask to wait a few minutes (the alcohol in mouth apparently disappears within 15-30 minutes.

I'm sure that one could adjust a start-connected device, but the only ones I know of are court-ordered for previous offenders with zero/very low tolerance.

If such devices became the norm, I predict a sudden boom in the valet parking business at restaurants. I'd guess there are a lot of ways around those devices. One result of zero-tolerance policies for alcohol for underage drivers is apparently a boom in the designated stoner driver. Sigh.

I still think strict enforcement with increased emphasis on the hard-core offender (repeaters, or high BAC) is more effective. Social pressure is also a factor- no one I know regards drunk driving as funny (that was not the case 25 years ago). Drunk driving still takes a lot of lives, but no where near as many as years ago.

Dale Williams wrote:I realize you have to blow hard to make a breathalyzer work, but any alcohol in your mouth (such as if you have spit ) can be picked up on way through- lung air has to pass through mouth. Which is why I've been told that if one is ever stopped after spitting you should calmly and politely explain that you would like a more definitive drawn blood test, or ask to wait a few minutes (the alcohol in mouth apparently disappears within 15-30 minutes.

FWIW, I was the first certified breathalyzer operator in FL. It was my experience that air in the mouth did not play into the reading of the breathalyzer. However, I am sure that exceptions abound and I will give you that my day was almost forty years ago.

I'm sure that one could adjust a start-connected device, but the only ones I know of are court-ordered for previous offenders with zero/very low tolerance.

No doubt technology has advanced to the point that, were such devices mandated, adjustments could be made.

If such devices became the norm, I predict a sudden boom in the valet parking business at restaurants. I'd guess there are a lot of ways around those devices. One result of zero-tolerance policies for alcohol for underage drivers is apparently a boom in the designated stoner driver. Sigh.

Sam Platt wrote:This issue is very difficult for obvious reasons. I have a co-worker whose son was killed by a drunk driver about 12 years ago. The drunk driver in question was a well respected local business man who made a really stupid decision. The family of the victim was completely devastated by their loss and will never fully recover. After spending almost 4 months in the hospital the driver was convicted of some type of manslaughter and served one year of a two year prison sentence. He lost everything, wife, money and real estate business included. In his case I do not believe that prison time did any good for anyone. The family of the victim agrees. They continue to morn their loss. He moved to Florida where he lives alone and works for a catering service. An instant of bad judgment changed more than half a dozen lives forever.

I agree that the focus should be on the prevention side.

This is why judges need to have sentencing discretion (up to a point). However, there are circumstances where it is better for society if the offending driver is jailed to prevent a recurrence. Some will continue to drive with no license and will continue to drive drunk, demonstrating their utter disregard for everyone but themselves.

In the case that started this thread, I agree with both the charge and the sentence.

Doug

If God didn't want me to eat animals, why did He make them out of meat?

Great question Bob. In reading the verdict today, "depraved indifference" struck me as overly legalistic, although I realize that that is the frame in which such cases must be decided. The larger issue is what society should do when someone drinks too much, gets behind the wheel and kills someone.

In my opinion the answer is that the book should be thrown at the perpetrator. Sure, there are mitigating reasons for drinking too much. Genetic predisposition, growing up in a family in which excessive drinking is part of life, crisis over a loved one breaking off a relationship, etc. are all understandable reasons. But when all is said and done, the fact is that the perpetrator caused the loss of innocent life. If such an act does not have major reprecussions, then what are the conditions under which killing does have serious consequences?

Why don't they take the guy out in front of the courthouse and hang him? That might deter a few people. It will also make sure this guy never gets behind the wheel and kills anyone else. Is it Draconian? If your aim is deterence it's probably the only thing that will work. Otherwise an ounce of prevention is worth a pound of cure.

.....we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth. A. Lincoln

I recently attended a fascinating seminar on tax compliance in Canada. If you’ll bear with me, I’ll illustrate how some of the findings on tax compliance are relevant to this thread.

Each year, the federal government surveys Canadians on their values. Included in this survey are several questions on tax compliance. Basically, people break into three groups:

Compliers: Believe it’s not OK to cheat on taxes and don’t do it.

Contingent non-compliers: Believe it’s not OK to cheat on taxes, but do it when the opportunity arises.

Non-compliers: They will cheat regularly and with purpose. Risk of getting caught is not a factor.

Here’s where it gets interesting. The overall survey results were mapped out according to these groups. Not surprisingly, compliers scored relatively high in areas like “everyday ethics,” “government involvement,” and low in “civil disobedience.”

At the other end of the spectrum, non-compliers scored high in “cynicism” and “civil disobedience.” Perhaps frighteningly, they scored incredibly low in areas like “everyday ethics,” “equality of the sexes,” and “openess toward others," while high in “ethnic intolerance" and "attraction to violence.”

Those people in the middle were basically “good folks.” And, interestingly, they are risk averse. In other words, if they think they’ll get caught, they are less likely to do it.

I don’t think it’s a stretch to adapt this sort of profile for other issues, such as drunk driving. The overall numbers will be different, but you’d quite likely have similar results, within three groups:

Sober drivers: Are against drunk driving and don’t do it.

Contingent drunk drivers: Are against drunk drivers, but may do it depending on the circumstances, i.e. “I’ve only had a couple of drinks,” or “I’m only five minutes from home.”

Drunk drivers: Your chronic re-offenders. These are the guys you read about with a dozen convictions, their licence was revoked, yet somehow they’re still ending up behind the wheel.

The point of this is that one-sized fits all solutions won’t work. Do the folks in the middle deserve to lose their licence permanently after only one offence? Is locking up all drunk drivers really going to solve the problem?

Personally, I cringe at “tough on crime” statements because they are too simplistic. If a stiff punishment were deterrent enough, then shouldn’t a state like Texas be executing fewer, if any, criminals for murder? In fact, research would suggest that while tough sentences are somewhat of a deterrent, the risk of getting caught is far more effective in preventing crime.

With the worst tax cheats, the study recommends using the full force of the law. Come down hard on them – they will try to offend no matter what. Education programs and publicizing enforcement activities will take care of the contingent non-compliers, as they don’t like taking risks if they know there's a good chance they'll face consequences.

With drunk driving, I think it should be similar. Sentences should be in relation to the seriousness of the offense and based on prior record. I don’t know what Martin Heidgen’s history is, but if he has any previous convictions for impaired driving, then a murder charge may be appropriate. A strong sentence also has an element of public safety because it keeps the worst offenders behind bars and off the roads.

Increase resources to checkstop programs and publicize enforcement and prosecutions. That’s a very effective deterrent for those folks in the middle.

Of course, if someone is killed, that should be considered an aggravating factor in the charges and sentencing. But ultimately, I think a thought out and well measured, rather than emotional, response is not only more effective, but more just.

The point of this is that one-sized fits all solutions won’t work. Do the folks in the middle deserve to lose their licence permanently after only one offence? Is locking up all drunk drivers really going to solve the problem?

Personally, I cringe at “tough on crime” statements because they are too simplistic. If a stiff punishment were deterrent enough, then shouldn’t a state like Texas be executing fewer, if any, criminals for murder? In fact, research would suggest that while tough sentences are somewhat of a deterrent, the risk of getting caught is far more effective in preventing crime.

With the worst tax cheats, the study recommends using the full force of the law. Come down hard on them – they will try to offend no matter what. Education programs and publicizing enforcement activities will take care of the contingent non-compliers, as they don’t like taking risks if they know there's a good chance they'll face consequences.

With drunk driving, I think it should be similar. Sentences should be in relation to the seriousness of the offense and based on prior record. I don’t know what Martin Heidgen’s history is, but if he has any previous convictions for impaired driving, then a murder charge may be appropriate. A strong sentence also has an element of public safety because it keeps the worst offenders behind bars and off the roads.

Increase resources to checkstop programs and publicize enforcement and prosecutions. That’s a very effective deterrent for those folks in the middle.

Of course, if someone is killed, that should be considered an aggravating factor in the charges and sentencing. But ultimately, I think a thought out and well measured, rather than emotional, response is not only more effective, but more just.

Mike:

With all due respect, this nuanced, informed, rational approach to dealing with difficult social issues may fly in Canada, but we simply can't have that kind of stuff going on down here in the U.S. of frickin' A! We don't do nuance.

I've been thinking about this thread a lot (more than I want to), and something in the original article struck me. How can someone who is drunk enough to not understand people flashing lights etc. at them show "depraved indifference to human life?" He was drunk. His senses/judgement was seriously impaired.

Manslaughter, yes, but murder...no.

There behind the glass lies a real blade of grass. Be careful as you pass. Move along. Move along.

David, that part of this case bothered me a great deal. Heidgen's blood alcohol content was nearly three times the legal limit of .08 percent. It's hard to see how he could have formed much if any intent, but of course driving at all at such a high level cuts against him.

New York law is fairly clear on the intent point, though, as shown in a standard set of jury instructions dealing with the question. I'm not sure this was the set of instructions used in this case, but it is in the form book as one that prosecutors, defense lawyers and judges look at.

If there is evidence of voluntary intoxication, the jury is instructed:

A person also recklessly engages in conduct which creates a grave risk of death to another when he or she creates the risk but is unaware of the risk solely by reason of his or her voluntary intoxication.

I'm sure that you have identified one of key points that will be argued on appeal of this conviction.

The entirety of the draft instructions -- except for a couple of paragraphs not relevant here dealing with leaving a person to their fate in dire circumstances and with torturing a person resulting in death -- follow:

MURDER SECOND DEGREE(A-I Felony)(Depraved Indifference Murder)PENAL LAW 125.25(2)(Committed on or after Sept. 1, 1967)(Revised April 9, 2006)1The count is Murder in the Second Degree.

Under our law, a person is guilty of Murder in the Second Degree when, under circumstances evincing a depraved indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of that person [or of a third person].

2. Some of the terms used in this definition have their own special meaning in our law. I will now give you the meaning of the following terms:

3 "recklessly engages in conduct which creates a grave risk of death to another person" and "depraved indifference to human life."

See Penal Law § 15.05(3); People 4 v. Boutin, 75 N.Y.2d 692, 696 (1990). See also People v. Sanchez, 98 N.Y.2d 373 (2002) and People v. Hafeez, 100 N.Y.2d 253 (2003); (Both cases emphasize that depraved indifference murder has a heightened degree of recklessness compared to the degree of recklessness necessary to constitute reckless manslaughter. Depraved indifference murder requires a recklessness which creates a “grave” risk of death, and reckless manslaughter requires a recklessness which creates a “substantial” risk of death. If both crimes are charged to the jury, the difference in the degrees of recklessness should be explained).

5See Penal Law § 15.05(3). People v. Register, 60 NY2d 270 (1983).

2. A person RECKLESSLY ENGAGES IN CONDUCT WHICH CREATES A GRAVE RISK OF DEATH TO ANOTHER PERSON when he or she: engages in conduct which creates a grave and unjustifiable risk that another person's death will occur, and when he or she is aware of and consciously disregards that risk, and when that grave and unjustifiable risk is of such nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

4. [NOTE: Where there is evidence of voluntary intoxication on the part of the defendant, add:

A person also recklessly engages in conduct which creates a grave risk of death to another when he or she creates the risk but is unaware of the risk solely by reason of his or her voluntary intoxication.]

5. Reckless conduct that results in death, however, is not enough to constitute this crime. And that is true no matter how grave or substantial the risk of death was. To constitute this crime, the evidence must also show that the defendant acted under circumstances evincing a depraved indifference to human life. In determining applicability, see People v. Suarez, supra .

3. A DEPRAVED INDIFFERENCE TO HUMAN LIFE consists of both depravity and indifference to human life. The reckless taking of the life of another can be considered a "depraved" act; but that does not mean that every reckless killing is a depraved indifference murder. Depraved indifference to human life is best understood as an utter disregard for the value of human life. Conduct engaged in with a depraved indifference to human life is conduct done, not because one means to cause death, but because one simply does not care whether or not death will occur. It reflects wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts. It is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to justify the same criminal liability that the law imposes upon a person who intends to kill.

****

4. In order for you to find the defendant guilty of this crime, the People are required to prove, from all the evidence in the case, beyond a reasonable doubt, each of the following three elements:

1. That on or about (date) , in the county of (county) , thedefendant, (defendant's name) , caused the death of(specify) ;

2. That the defendant did so by recklessly engaging inconduct which created a grave risk of death to (specify);

and

3. That the defendant engaged in such conduct undercircumstances evincing a depraved indifference tohuman life.

Therefore, if you find that the People have proven beyond areasonable doubt each of those elements, you must find thedefendant guilty of the crime of Murder in the Second Degree ascharged in the count.

On the other hand, if you find that the People have notproven beyond a reasonable doubt any one or more of thoseelements, you must find the defendant not guilty of the crime ofMurder in the Second Degree as charged in the count.

One key point against the defendant is that he was guilty of prior DWI convictions. Prior DWIs should serve as a warning that driving under such circumstances could lead to fatalities. In New York, people convicted of DWI have to go through additional drivers education. Many people believe that ignoring that warning and education constitutes second-degree murder.

Still, a very hard case, I think, especially since New York law has made it tougher and tougher to make this finding. The current thinking among lawyers in the jurisdiction seems to be the verdict will be reduced to manslaughter.

I believe it’s moot. Regardless of whether a court gets tough on a one-off basis, we have to enable criminals so that we can vicariously flaunt authority. News channels are entertainment centers for this vicarious mechanism. If we could eliminate crime, we would have to commit the crimes directly.

Personally, I would arrange with Russia to take every criminal, including DWI killers, on the first strike to Siberia for life. It would be cheaper than housing them here on and off. Many people who go through our prison system don’t really care whether they are in or out, that’s why they so easily commit the crimes. They get health benefits, housing, meals, gym membership, social clubs and entertainment free, and know that the will be out again to enjoy raping, killing and what-have-you.